ARCH A. MOORE, JR.

Governor

STATE OF WEST VIRGINIA HUMAN RIGHTS COMMISSION215 PROFESSIONAL BUILDING

1036 QUARRIER STREETCHARLESTON. WEST VIRGINIA 25301

TELEPHONE 304-348-2616

January 9, 1986Robert Steptoe, Jr.Steptoe & JohnsonP.O. Box 2190Clarksburg, WV 26302

Richard L. Hinerman1000 Sixth StreetMoundsville, WV 26041

RE: EA-290-85, Hinerman v Olin Corporation

Dear Mr. Steptoe & Mr. Hinerman:

Herewith please find the Order of the WV Human Rights Commission inthe above-styled and numbered case of Richard L. Hinerman v OlinCorporation, EA-290-85.

Pursuant to Article 5, Section 4 of the WV Administrative ProceduresAct (WV Code, Chapter 29A, Article 5, Section 4] any party adverselyaffected by this final Order may file a petition for judicial review in eitherthe Circuit Court of Kanawha County, WV, or the Circuit Court of theCounty wherein the petitioner resides or does business, or with the judgeof either in vacation, within thirty (30) days of receipt of this Order. Ifno appeal is filed by any party within (30) days, the Order is deemedfinal.

Sincerely yours,--d~cu-&-,d -c..Howard D. Kenne~ "--7Executive Director

HDK/kpvEnclosureCERTIFIED MAIL/REGISTERED RECEIPT REQUESTED.

RICHARD L. HINERMAN,

Complainant,

vs. Docket No.: EA-290-85

OLIN CORPORATION,Respondent.

ORDEROn the 11th day of December, 1985, the Commission reviewed

the Findings of Fact and Conclusions of Law of Hearing Examiner

James Gerl. After consideration of the aforementioned, the

Commission does hereby adopt the Findings of Fact and Conclusions

of Law as its own.

It is hereby ORDERED that the Hearing Examiner's Findings of

Fact and Conclusions of Law be attached hereto and made a part of

this Order.

By this Order, a copy of which shall be sent by Certified

Mail to the parties, the parties are hereby notified that THEY

HAVE TEN DAYS TO REQUEST A RECONSIDERATION OF THIS ORDER AND THATTHEY HAVE THE RIGHT TO JUDICIAL REVIEW.

f:tEntered this ~L-- day of __~\__TC~~~.._~_-. , 1985 •.~/

Respectfully Submitted,

STATE OF WEST VIRGINIA fR,ECE"lEDHUMAN RIGHTS COMMISSION N(lV 1 ')'- ,} 1985

Complainant,

RICHARD L. HINERMAN,

VS. DOCKET NO. EA-290-85

OLIN CORPORATION,

Respondent.

PROPOSED ORDER AND DECISION

PRELIMINARY MATTERS

A public hearing was convened for this matter on September 10-

11, 1985, in Moundsville, west Virginia. The complaint was filed on

December 27, 1984. Notice of hearing was served on May 6, 1985.

A status Conference was held on May 30, 1985. At the hearinq,

respondent's Motion for Directed Finding at the close of complainant's

case was granted. Subsequent to the hearing, respondent submitted a

proposed decision which included proposed findings of fact. Complainant

was invited to file a Motion to Reconsider, but he has not done so.

All proposed findings, conclusions and supporting arguments

submitted by the parties have been considered. To the extent that

the proposed findings, conclusions and arguments advanced by the parties

are in accordance with the findings, conclusions and views as stated

herein, they have been accepted, and to the extent that they are

inconsistent therewith, they have been rejected. certain proposed

findings and conclusions have been omitted as not relevant or as not

necessary to a proper determination of the material issues as presented.

To the extent that the testimony of various witnesses is not in accord

with the findings herein, it is not credited.

CONTENTIONS OF THE PARTIES

Complainant contends that respondent discriminated against him

on the basis of his age by terminating his employment as a shift

production supervisor in October, 1984. Complainant further contends

that he should have been offered a lesser position as were employees

Zappitelli and Grandbouche, following the indefinite shut down of

the plant on October 15th because he was aua1ified to perform such

work. Respondent maintains that those individuals who were retained

to work as security guards were extremely close in age to the complainant

and were better qualified than complainant to perform in a dual capacity

subsequent to the plant shut down.

FINDINGS OF FACT

Based upon the parties stipUlations of uncontested fact as set

forth on the record at the hearing, the Hearing Examiner has made the

following findings of fact:

1. Complainant was born on November 20, 1930, and was 54 years

old at the time of hearing herein.

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2. Complainant was employed by respondent from october 26, 1981,

until October 31, 1984.

Based upon a preponderance of the evidence, the Hearing Examiner

has made the following findings of fact:

3. At the time of his termination by respondent, complainant

was 53 years of age. Complainant was hired by ~llied Chemical

corporation in 1953 as an "operator" at Allied's Moundsville, l'Test

Virginia, facility. In 1956, complainant was promoted out of the

union ranks to the position of shift foreman, a salaried positiono

As a shift foreman, he directly supervised approximately 15 employees

but was not directly or immediately responsible for the operation of

any of the plant's various chemical production units. While serving

as a shift foreman, complainant's immediate supervisor held the title

of "area supervisor"o

40 In 1965, complainant was promoted from shift foreman to unit

supervisor, a job he performed for Allied until 1981. As a unit

supervisor, complainant was assigned almost exclusively to the mixed

toluene diamines unit (TDI Unit) located in Building 52. ~s a unit

supervisor, he continued to supervise approximately 15 employees and,

just as he did when he previously served as a shift foreman, he

reported directly to the area supervisor. From approximately 1977until 1981, the area supervisor to whom complainant directly reported

was Trouts.

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5. In January or February of 1981, complainant was demoted from

unit supervisor to shift foreman. Complainant continued to work as a

shift foreman from early 1981 until October IS, 1984.

6. Olin Corporation purchased the Allied Chemical Corporation's

Moundsville, l',TestVirginia, plant on October 26, 1981, and thereafter

complainant continued to work as a shift foreman under the immediate

supervision of Pettit.

7. Throughout the course of his employment at the Moundsville

plant from 1953 until 1984, complainant was almost exclusively

involved in the front line production of chemicals. Furthermore,

he was principally involved in the production of mixed toluene diamines.

8. Complainant's work at Allied Chemical and at respondent was

rated "fully competent", with only one exception in which he was rated

one grade higher several years prior to respondent's purchase of the

Moundsville plant.

9. In September, 1984, respondent announced a temporary shut

down of the Moundsville plant for extensive maintenance and capital

improvements. When the maintenance outage commenced in September,

complainant, whose regular job classification was shift foreman, was

assigned temporarily to work as a gate guard. ~s a gate guard,

complainant checked trucks in and out, signed bills of lading, toured

the plant periodically for security purposes, and checked fire pro-

tection equipment.

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10. On the 12th of October, 1984, respondent announced that the

entire plant was being shut down indefinitely for economic reasons.

~.t the time this announcement was made, complainant was on vacation

and out of town. He received the news of the shut down and his

termination of employment sometime around the 19th of October.

11. Subsequent to October 15th, 1984, respondent retained

various hourly and FLSA salaried exempt employees to effect the shut

down in an orderly fashion and then to maintain the plant in a standby

condition. ~dditiona11y, respondent continued to produce limited

quantities of one chemical and shipped various other chemicals which

were either inventoried, manufactured on a limited basis, or purchased

from other manufacturers and later resold after a period of storage

at the Moundsville facility. Added to these functions and operations

was the requirement that the plant be decontaminated and protected

from environmental accidents.

12. Those FLS~ salaried exempt employees who were retained by

respondent to accomplish the foregoing ~~rk and objectives initially

(beyond November 1, 1984) included the following:

Name ,Age Job Title

1. A. D. Kimble 59 Senior Chemist2. J. s. Springfield 59 Production supervisor-boilerwater3. R. L. Supan 58 senior Safety Supervisor4. J. H. McNamera 53 Accoun~ing Manager5. J. 'A. Grandbouche 53 Maintenance Specialist II6. v. R. Bodner 53 Senior ~ccounting Supervisor

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Name Age Job Title

7. E. P. Zappitelli 52 Training Supervisor8. R. L. Higgins 51 Environmental control Superintendent9. c. w. Tribett 50 Quality ~ssurance Manager

10. K. L. Bissett 46 Accountant I11. o. F. Holley 45 Maintenance Superintendent -

Mechanical12. R. L. Warren 43 Senior Data Processing Supervisor13. G. R. Offenberg 41 construction Supervisor14. l\. L. Matson, Jr. 41 Technical Manager15. R. A. Campbell 40 Plant Manager16. s. D. Turner 37 Purchasing Manager17. R. A. Brend1er 36 Senior Production Manager18. s. E. Parsons 36 Engineering Manager19. F. H. Trevino 32 Occupational Health20. J. T. Trouts 31 Production Manager - Acting

Plant Manager21. s. Chatterjee 30 Senior Production Engineer22. w. ~.. Sandonato 28 Industrial Relations Supervisor23. R. N. Runge 27 Production Superintendent

Sandonato further testified that V. L. Fabry (age 61) wa.s maintained

on long-term disability subsequent to October 15, 1984, although he

was not actually utilized for any work. Finally, Sandonato testified

that o. L. Pettit (age 54) was recalled on February 20, 1985.

13. While retaining the foregoing employees to maintain the plant,

handle limited production, perform decontamination, etc., respondent

utilized several of these persons in a dual capacity, namely to serve

as security guards stationed at the entry gate to the plant.

14. Grandbouche, born on December 29, 1930, is five weeks younger

than complainant. Both individuals were age 53 on the date of the

layoff, october 15, 1984. Complainant does not have as much maintenance

experience and knowledge as Grandbouche1 Grandbouche was a career front

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line maintenance foreman whose primary responsibility was to ma.intain

plant equipment. Complainant's own primary work responsibility at

respondent was production, not maintenance. Complainant has no special

education in machine shop work.

15. Grandbouche was better qualified than complainant to perform

the maintenance work for which Grandbouche was retained by res~ondent

subsequent to the shut down.

16. Zappitelli, who was 52 years old at the time of the layoff,

is sixteen months younger than complainant. Prior to the layoff,

Zappitelli's job title was "training supervisor". On those few

occasions when complainant was instructed to write job sa.fety analyses

he did so for Zappite11i. Zappite11i provided two counseling sessions

for displaced employees to instruct with respect to resume writing and

job interviewing. Subsequent to the layoff, the hourly employees who

were retained ended up doing jobs different from what they did prior

to the layoff and, therefore, required training. Complainant's

involvement in safety training for employees was limited: he had taken

only several short safety training courses administered by respondent

subsequent to 1981: and his involvement in safety training for employees

consisted of conducting the monthly one-hour safety meetings where he

read from materials prepared by the safety office or some other division

of respondent.

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17. Zappitelli was better qualified than complainant to perform

the training job for which Zappitelli was retained subsequent to the

shut down.

18. As of October 31, 1981, respondent had 62 exempt employees.

Of these 62 employees, 47 (76%) are age 40 or over and 15 (24%) are

under age 40. This listing of employees was made as of five days

after respondent purchased the Allied Chemical plant and hired the

salaried exempt employees.

19. ~s of October 31, 1982, respondent had 78 active employees.

Of the total of 78 employees, 55 (71%) are age 40 or over and 23

employees (29%) are under age 40.

20. As of October 31, 1983, respondent had 69 active FLSA exempt

employees on that particular date. Of this total of 69 active FL~~

exempt employees, 48 employees (700j,,) were age 40 or over and 21

employees (30%) were under age 40 as of October 31, 1983.

21. As of September 1, 1984, respondent had a total of 68 FLSA

exempt employees. Of these 68 employees, 52 persons (75%) were age

40 or over and 16 persons (25%) were under age 40.

22. Respondent retained the following employees on and subsequent

to November 1, 1984:

Job Title

1. A. D. Kimble2. J. S. Springfield

5959

Senior ChemistProduction supervisor-boilerwater

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3.4.5.6.7.8.9.

10.11.

12.13.14.15.16.17.18.19.20.

21.22.23.

Job Title

R. L. SupanJ. H. McNamaraJ. A. GrandboucheV. R. BodnerE. P. Zappite11iR. L. HigginsC. W. TribettK. L. Bissetto. F. Holley

585353535251504645

Senior Safety SupervisorAccounting ManagerMaintenance Specialist IISenior Accounting SupervisorTraining SupervisorEnvironmental Control Superintenden1Quality Assurance ManagerAccountant IMaintenance Superintendent -

MechanicalSenior Data Processing SupervisorConstruction SupervisorTechnical ManagerPlant ManagerPurchasing ManagerSenior Production EngineerEngineering ManagerOccupational Health Nurse IIProduction Manager and

Assistant Plant ManagerSenior Production EngineerIndustrial Relations SupervisorProduction Superintendent

R. L. WarrenG. R. OffenbergA. L. Matson, Jr.R. ". CampbellS. D. TurnerR. A. Brend1erS. E. ParsonsF. H. TrevinoJ. T. Trouts

434141403736363231

s. Chatterjeew. ~. SandonatoR. N. Runge

302827

23. Of, the 23 employees retained for some meaningful period

of time subsequent to November 1st, 15 individua.1s were in the

protected class (age 40 through 65) and 8 employees were in an

unprotected class. Stated in terms of percentages, of the 23 retained

employees, 65% were in the protected class and 35% were in an unpro-

tected class.

24. Respondent did not engage in a pattern or practice of age

discrimination.

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CONCLUSIONS OF LAW

1. Richard L. Hinerman iA an individual claiming to be

aggrieved by an alleged unlawful discriminatory practice and is a

proper complainant for purposes of the Human Rights ~ct. West

virginia Code, section 5-11-10.

2. Olin Corporation is an employer as defined in West

virginia Code, section 5-11-3(d) and is subject to the provisions

of the Human Rights Act.

3. Complainant has not made out a prima facie case that

respondent discriminated against him on the basis of age by not

retaining him subsequent to the plant shut down.

4. Respondent did not discriminate against complainant on

the basis of age by not retaining him subsequent to the plant shut

down. west Virginia Code, Section 5-ll-9(a).

Discussion of Conclusions

In fair employment disparate treatment cases, the initial

burden is upon the complainant to establish a prima facie case of

discrimination. Shepherdstown Volunteer Fire Department v. West

Virginia Human Rights Commission 309 S.E.2d 342, 352-353 (w. Va. 1983):

McDonnell-Douglas Corporation v. Green 411 U.S. 792 (1973).

~ complainant may establish a prima facie case of discrimination

by setting forth facts which, if otherwise unexplained would raise an

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inference of discrimination. Furnco Construction Co. v. waters

439 U.S. 567, 577 (1979)1 Texas Department of Community Affairs v.

Burdine 450 U.S. 249 (1979). In the instant case, complainant has

established no such facts.

Complainant claims that respondent discriminated on the

basis of his age by retaining Zappitelli and Grandbouche after the

plant shut down. It is significant, however, that Grandbouche and

Zappitelli are both approximately the same age as complainant.

Grandbouche is approximately five weeks younger than complainant

and both Grandbouche and complainant were 53 years old on the date

of layoff. Zappitelli is sixteen months younger than complainant

and he was 52 years old at the time of the layoff. Moreover, complain-

ant was not as qualified as Grandbouche to do the maintenance job

subsequent to the shut down and complainant was not as qualified

as Zappitelli to do the training and safety job after the shut down.

Complainant's experience at respondent involved production supervision,

and he had no maintenance experience and only minimal safety experience.

While Grandbouche and Zappitelli were retained by respondent in part

to serve as guards, their jobs also included the maintenance and

training components, which complainant was not qualified to perform.

Thus, it can not be concluded that respondent's retention of

Zappitelli and Grandbouche raise an inference of age discrimination.

-11-

complainant has also attempted to establish a prima facie

case of age discrimination by introducing evidence which he claims

proves a pattern in practice of age discrimination by respondent.

with regard to the statistical evidence offered in this case, it

is important to note the smallness of the statistical sample. When

dealing with such small numbers, it is very difficult to draw

meaningful and statistically significant conclusions. Accordingly,

one must be on guard for deceptive conclusions made from small

numbers. The record evidence in this case reveals that as of

September 1, 1984, respondent had a total of 68 FLSA exempt employees.

Of such employees, approximately 75% (52) were age 40 or over and

approximately 25% (16) were under age 40. Subsequent to the shut

down, respondent retained 23 of such employees. Respondent retained

8 of the 16 employees who were under age 40 (35%) and 15 of the 52

employees who were age 40 or more (65%). Because respondent's

workforce was approximately 75% age 40 or above prior to the shut

down, it would be expected that approximately 75% of the employees

retained would be 40 years of age or greater. In fact 65% of the

employees retained were age 40 or more. The discrepancy, however,

is not so large as to raise an inference of discriminationr if

respondent were using age as a factor in its employment decisions,

the percentage of employees aged 40 or more would be expected to

drop well below 65%.

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Complainant testified at the hearing that he believed that

respondent's decision to lay him off was unfair and that respondent

had a moral duty to retain him subsequent to the shut down because

of his physical condition, the number of years he served at the

Moundsville plant, and because of his poor chances to obtain

employment subsequent to his layoff. It is not within the province

of the Commission or of the Hearing Examiner to make rulings as to

the unfairness of employment decisions. Accordingly, complainant's

contentions with regard to the unfairness of his treatment by

respondent are not addressed herein.

It is concluded that the evidence produced by complainant

at the hearing, even when viewed in light most favorable to

complainant, does not raise an inference of discrimination.

Complainant has not established a prima facie case of discrimination

on the basis of age.

DETERMINATIONThe complaint in this matter is not supported by the

preponderance of the evidence.

PROPOSED ORDER

In view of the foregoing, the Hearing Examiner recommends

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that the Commission dismiss the complaint in this matter withprejudice.

ENTERED:

i=fbh ~I.1.. ES GERL/HARING EXAMINER

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that he has served the

foregoing PROPOSED ORDER AND DECISION by placing true and correct

copies thereof in the United States Mail, postage prepaid, addressed

to the following:

John RichardsonHuman Rights Commission1036 Quarrier StreetCharleston, West virginia 25301

Robert steptoe, Jr.STEPTOE & JOHNSONP.O. Box 2190Clarksburg, west Virginia 26302

on this 12..Jf~ day of